Why opponents of the freedom to marry fear court trials

August 17, 2010

Postesd by William K. Black on huffingtonpost.com:

"Notre Dame Law School Professor Gerard Bradley criticized United States District Court Judge Vaughan Walker, who heard the challenge
to the constitutionality of California's Proposition 8, on the grounds
that the judge was unfit to hear the case if the reports that he was
gay were correct (see my post on New Deal 2.0: "Gay Judges Need Not Apply").
Proposition 8 sought to overturn the decision of the California Supreme
Court that it was unconstitutional to forbid gays to marry. Bradley
also complained that the trial that Judge Walker conducted demonstrated
his bias. ...

... "Bradley's attack on Judge Walker as unfit to decide the case if the
reports of him being gay were accurate has received considerable
attention, but Bradley and Whelan's attack on the trial itself is
equally revealing. Bradley explained in his 2003 National Review article "Stand and Fight: Don't Take Gay Marriage Lying Down" why he feared a trial by any judge. The fundamental problem for the anti-gay forces was the Supreme Court decision in Lawrence v. Texas
declaring unconstitutional the state law making consensual adult sodomy
a crime. The Supreme Court decision confirmed its unwillingness to
treat 'traditional attitudes towards homosexuality' as legitimate bases
for discriminating against gays.

"Bradley was writing to an audience that largely shared those 'traditional attitudes towards homosexuality,' so he was unusually open
about the nature of those attitudes.

'Justice Scalia is surely right that 'many Americans do not
want [openly gay] persons . . . as partners in their business, as
scoutmasters for their children . . . or as boarders in their home.'

"Or as the newlyweds next door.

"Bradley recognizes that whether we describe these 'traditional
attitudes' as revulsion, discrimination, or homophobia, they provide no
rational basis for laws that discriminate against homosexuals.

"Justice Scalia seems to say that the law limits marriage to one man
and one woman because of society's 'moral disapprobation of homosexual
conduct' (and says that the Court's majority deems that motive
unconstitutional). What would be the reasoned basis for that 'disapprobation'? Feelings of repulsion won't do, since feelings are
not reasons at all.

"Indeed, Scalia's dissent proved the point that the majority made in Lawrence
-- the majority was discriminating because it despised a minority
group, a classic violation of the equal protection clause of the 14th
Amendment. Bradley warned his readers that trying to prove to a court
that there was a 'rational basis' for discriminating against gays was a
disastrous legal strategy.

... "This is why opponents of homosexual marriage are desperate to avoid
any trial in which they would be required to support their claims that
such marriages would harm heterosexuals' marriages. Note that the
disasters that Bradley fears are not televised hearings or the
harassment of experts testifying in opposition to homosexual marriage.
The disaster he fears is any fair trial because it will expose the fact
the attacks on gays are baseless. He recognizes that this will cause
immense harm to those that wish to discriminate against homosexuals by
exposing their bias and by demonstrating that gays are normal rather
than demonic. The single most important reason that Americans,
particularly Americans under the age of 50, have dramatically reduced
their antipathy for gays is that far more gays are now openly gay.
Americans increasingly recognize that they are colleagues, friends, and
relatives of gays and that gays are normal, rather than the despised 'other.' Bradley understands that this normalization is the greatest
threat to preserving discrimination against gays and is desperate to
counter it.

"The clock is running out for another reason, too: The freedom to marry
is rapidly being normalized, culturally and legally. Many same-sex
couples already consider themselves married, and expect to be treated
as such. In many jurisdictions they are -- more or less, depending on
how many concessions the law has made to them on adoption, survivors'
benefits, and the like.

... "Bradley's primary strategy is passage of a constitutional amendment
removing the protection of the 14th amendment from homosexuals who wish
to marry. His secondary strategy, which he believes would fail, is to
create a new 'natural law' theory that would provide a rational basis
for the return of even the most draconian forms of discrimination
against gays.

'And so the rational basis of [sodomy] laws such as Texas' was to protect and promote marriage, if in a very limited way.

"But, as this example shows, and Bradley and Robert George, a fellow
new natural law theorist, have acknowledged in their articles, the 'rational basis' for prohibiting marriage equality that they claim
arises from their theories cannot be demonstrated. Bradley supports
upholding laws imprisoning gays for years on felony charges (for having
consensual sex) in order to promote heterosexual marriages 'in a very
limited way.' He knows that he could not demonstrate this claimed
rational basis if a trial were held at which he had to prove his
assertions. This is why those hostile to gay rights feared a trial on
Proposition 8 rather than relishing the opportunity to back up their
claims in court."

Freedom to Marry was the campaign to win marriage nationwide. With the Supreme Court victory on June 26, 2015, the work of this strategic campaign – though not the larger movement – was achieved, and Freedom to Marry wound down its operations, closing in early 2016. For inquiries, please email legacy@freedomtomarry.org.